BECKHAM & BECKHAM

[2014] FamCA 1201

FAMILY COURT OF AUSTRALIA

BECKHAM & BECKHAM [2014] FamCA 1201

FAMILY LAW – Case Management – Order under s 69ZT made

Family Law Act 1975 (Cth)

APPLICANT: Mr Beckham

RESPONDENT: Ms Beckham

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: AYC 501 of 2010

DATE DELIVERED: 1 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 December 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Finn

SOLICITOR FOR THE RESPONDENT: McKean Park Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Glass

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That pursuant to s 69ZT of the Family Law Act 1975, the rules of evidence shall apply to these proceedings.

2. That the reasons this day be transcribed and be placed on the court file.

3. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Berman as the second case in the monthly list commencing on 19 May 2015 not to be called before 10 am on 21 May 2015 as a four day matter.

4. The evidence in chief of all witnesses shall be given by affidavit.

5. For the purposes of these proceedings, the wife shall be the applicant and the husband shall be the respondent.

   TIMETABLE:

6. By 4 pm on 10 April 2015 the applicant wife file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

7. The applicant wife pay all required court fees by 4 pm on 10 April 2015.

8. By 4 pm on 22 April 2015 the respondent husband file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

9. By 4 pm on 29 April 2015 the applicant file and serve any affidavit in reply.

10. By 4 pm on 19 May 2015 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

11. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

FAMILY REPORT

1. Pursuant to s 62G (2) of the Family Law Act, the parties attend upon and at the direction of Dr B for the purposes of the preparation of a comprehensive family report including, if necessary a psychiatric evaluation of all parties and the children as Dr B sees appropriate to be released by 10 April 2015.

2. The appointed psychiatrist:

   (a)may require a party to attend with, or bring in, a child whose interests may be affected by the proceedings;

   (b)may have access to the court file (but be conscious that the evidence of the parties is contained in their affidavits as ordered above);

   (c)may have access to any documents produced under subpoenae that have been released for inspection; and

   (e)should advise the Court generally about matters of child welfare and development.

   SUBPOENAE

3. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

   CASE MANAGEMENT

4. The registrar may vary the filing timetable under these orders.

5. If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.

6. Any rulings required on objections to evidence shall be set out in the case outline.

7. By 4 pm on 19 May 2015 all parties file electronically to …  a case outline in one document setting out:

   (a)a concise set of orders to be sought;

   (b)the list of the affidavits to be read;

   (c)the list of objections to evidence requiring a ruling;  and

   (d)the outline of the issues in dispute.

8. That there be general liberty to apply in relation to:

   (a)The contact between the husband and the children until trial in the event that the parties cannot reach agreement;

   (b)Any problems associated with Dr B’s involvement; and

   (c)The timetable generally.

   AND THE PARTIES SHOULD NOTE:

   A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

   B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beckham & Beckham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: AYC 501  of 2010

Mr Beckham

Applicant

And

Ms Beckham

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. HIS HONOUR: Two out of the three parties to these proceedings today have legal representation; the husband does not. The independent children’s lawyer and the wife both seek that the court apply section 69ZT(3) in these parenting proceedings, such that the rules of evidence should apply. I have explained to the husband why I think the rules of evidence should apply, and as best I can ascertain, he seems to understand.

2. There are very serious consequences for these children, leaving aside the consequences for the respective adults arising from various proposed orders.

   There is a very real possibility that if the wife establishes what she says is what she wants to prove, that the children may have their father excluded from their lives.  On the other hand, there are serious allegations here that might also mean that the court finds an unacceptable risk.  There is a prospect that the husband’s time would be restricted to a supervised arrangement as it is at present.  But, as is well understood, supervision also cannot go on forever.  Apart from the cost and the inconvenience of it, there is the sterile environment.

   The youngest of these children would therefore face a significant period of time in the future under that sterile environment.  Whilst it may be protective for the children, it certainly does not meet any of the criteria that most parents would want for their children. 

3. In my view, therefore, these are exceptional circumstances and this is a case where each of the matters that needs to be tested should be tested properly with the rules of evidence. 

4. I have explained to the husband that notwithstanding he is without legal representation, those rules will apply to him, and also explained the necessity for him to get some advice before he files his affidavit of evidence in chief.

5. Accordingly, I make an order under section 69ZT for the rules of evidence to be applied in respect of each of the witnesses.

6. Henceforth, the wife shall be the applicant and the husband the respondent in the proceedings. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 December 2014.

Associate: 

Date:  23 December 2014